Granger cell tower triggers lawsuit

Neighbors fear health effects, reduced home values.

Neighbors fear health effects, reduced home values.

September 14, 2008|BY JEFF PARROTT Tribune Staff Writer

GRANGER -- As a boy, Tim Janowiak recalls camping so often on his grandparents' farm -- land that is now the Knollwood subdivisions -- that his parents jokingly claimed they hardly ever saw him. As a man, that love of nature led him in 1991 to build a log cabin-style home on his parents' heavily wooded 10-acre property across Adams Road. In his backyard, the 55-year-old South Bend firefighter had especially enjoyed raising pheasants and relaxing at a bonfire pit. But he says his world changed in December 2006 when Charles S. Hayes Inc., despite heavy opposition from Janowiak and his neighbors, won county approval to erect a 120-foot cell phone tower next to Janowiak's home. Janowiak says he still can't believe the tower, which drew an unfavorable recommendation from area planners, cleared the County Council. Council members said they approved it partly because it would enhance communications for police, fire and emergency medical personnel in the area, but the two wireless carriers that serve those agencies, Nextel and Verizon, have not placed antennae on the tower. Now that the tower has been built, he and his next-door neighbors, Harold and Rita Hooton, say their fears have been realized. They are hoping a judge will be more sympathetic to their concerns. In a St. Joseph County Circuit Court lawsuit they recently filed against Hayes and his company, Janowiak and the Hootons claim the tower has essentially ruined their homes, the biggest investment of their lives. They say the loud and pulsating noise from the tower's huge air conditioners, which continuously turn off and on, makes it difficult to sleep at night. An "almost imperceptible hum in the background" causes them anxiety and discomfort. Because of the tower's proximity, their property values have declined by at least 25 percent, according to their properties' March 2008 tax reassessment, they allege, and their homes have been rendered "almost unmarketable." Janowiak says he has developed back problems from constantly bending over to pick up plastic artificial pine needles that blow down from the tower, which is camouflaged to resemble a pine tree. He has a box full of the needles, stored in plastic baggies he has labeled by date. The relatively detailed nine-page complaint also claims Janowiak has had to clean up litter and debris left by workers who frequently service the tower. One worker threatened Janowiak when Janowiak asked him to quiet down when talking about sexual matters, and Janowiak has seen workers openly urinating and defecating at the site, which lacks a restroom, the suit alleges. Finally, Janowiak and the Hootons worry about the possible health effects from microwave electromagnetic radiation emitted by the tower. They acknowledge that researchers have yet to reach consensus on the issue, but when it comes to property values, perception is reality, they say. "We call it the hell tower," Janowiak said. "These cell towers are not supposed to be in people's backyards. It's just not right." Hayes had yet to file a reply to the suit as of Friday, according to court records, and he declined to comment on the allegations when contacted by The Tribune. "We would say the lawsuit is not material," Hayes said, declining to elaborate because of the pending litigation. But in general, Hayes said cell towers are safe. "This issue of radio waves has been around since World War II," Hayes said. "There have been all kinds of studies but nothing to even suggest a problem." Hayes said his company owns about 40 cell towers throughout Michiana. Cell phone carriers pay the company to place antennae on the towers, which likely will continue to increase in number until carriers eliminate their dead spots -- areas where cell phones lose reception. More opposition Janowiak and the Hootons are not alone. Two other upcoming cell tower proposals are encountering opposition. The Mishawaka Common Council is set to vote Monday night on a cell tower that AT&T wants to build on Grape Road land owned by the Humane Society of St. Joseph County. Also Monday, the South Bend Board of Parks and Recreation was to consider a request from Hayes to buy some Rum Village Park land, upon which he hopes to build a cell tower. Hayes says AT&T approached him and asked him to build the tower there. Terry Patnaude, 64, whose Imus Court home sits about 300 feet from the proposed Humane Society tower site, said his wife has gathered about 70 petition signatures from neighbors opposing the project. He hopes to speak at the council meeting. He, too, fears declining property values. "We've lived here 30 to 35 years and we planned on staying here," Patnaude said. "We're not sure if property values will go down, but all the information we have is that property values usually go down from 5 to 20 percent. If we wanted to resell, we'd have that to deal with." Since learning of the proposal, Patnaude said he has combed the Internet and found some unsettling things about how cell tower radiation has sickened those who live nearby. If the tower is built, he said, that uncertainty would mar the visits he cherishes from his 1-year-old granddaughter, Peyton. "Even though nothing can be proven ... people staying here don't want that in the back of their minds," Patnaude said. In cases nationally where cell towers have been challenged for their potentially adverse health effects on neighbors, tower developers have largely prevailed before zoning boards. Under the federal Telecommunications Act of 1996, state or local governments may not regulate the "placement, construction and modification" of cell towers "on the basis of the environmental effects of radio frequency emissions" as long as the tower complies with Federal Communications Commission regulations. Other arguments In 2001, four local households, making arguments similar to Janowiak and the Hootons, sued Hayes over his towers in River Park, Roseland and Osceola. The parties settled out of court last year. When contacted by The Tribune, they said a confidentiality agreement prohibited them from discussing the case. But in 2003, Judge Terry Crone, citing that federal law, dismissed the part of their lawsuit that sought compensation for personal injury caused by the radiation emissions. At Rum Village Park, the parks board last month tabled the proposal after the park's nature center director voiced concerns about migratory birds crashing into the tower. Hayes said not enough migratory birds fly in this area for that to be a problem. Paul Duda, a Rum Village Neighborhood Association board member, said most members were opposed to the tower at their meeting earlier this month. He noted he has nothing against it, especially if the park can convert money from the land sale to park improvements. Janowiak said he realizes it is likely too late to have the tower near his home removed, but he thinks he should be compensated for his damages. "We told them this stuff would happen," he said. "I just want to make sure no one else has to go through this thing." Staff writer Jeff Parrott: jparrott@sbtinfo.com (574) 235-6320